February 8, 2010

Colorado Court of Appeals 2-4-10

People v. Everett        Sexual Assault / CRE Rule 404(b)
The eighteen year-old complaining witness against Mr. Everett claimed that as she was waiting for friends when she asked Mr. Everett for a cigarette as he passed by. Mr. Everett said he did not have one, but a friend might. So, they walked to the friends house, sat on the grass, and talked. After awhile, according to the complaining witness, Mr. Everett made unwanted advances toward her. She claimed then she wanted to leave, but Mr. Everett forced himself on her and sexually assaulted her. When he finished, he said his name was 'Eric', he apologized,and said he just got out of prison. Pennsylvania previously convicted Mr. Everett of sexual assault. In Pennsylvania, according to the CofA, the "defendant sneaked into an apartment where an eighteen-year-old woman, whom he had known for three days, was sleeping. The woman woke up in her bed with defendant lying next to her. Defendant climbed on top of her as she lay on her back, forcibly put her legs on his shoulders, and held her down with his weight. She resisted, and repeatedly told him to stop, but he removed her pants and penetrated her anally. When he finished attacking her, he shook her hand. Defendant had previously told this woman that his name was 'Dylan.' Initially, the prosecution offered up every reason in the rule as a basis for admitting the Pennsylvania case into evidence. The trial court denied the prosecution's motion. However, the trial court reserved ruling to admit the Pennsylvania case if Mr. Everett pursued a defense of consent (which he did because of a DNA match). The trial court then allowed the prosecution to admit the Pennsylvania case to refute consent. The CofA affirmed the trial court's ruling. The Court stated, "Further, the court recognized Colorado law, including section 16-10-301(3), C .R.S.2009, when it stated that the prior sexual assault (1) was relevant; and (2) had “significant probative value” because it directly addressed the issues presented by the defense theory of consent."
Rule: all prior sexual acts by the defendant are probative of consent or lack thereof, but all prior sexual acts by any complaining witness are not probative ever -  PIG! How dare you!!!

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